Next law up for revision may be ECPA

Citing the drastic changes in the technological landscape since the law was first passed, a coalition of tech industry heavyweights has launched an effort to persuade Congress to update or revise the Electronic Communications Privacy Act (ECPA). The cooperative effort of the “Digital Due Process” coalition is notable for the inclusion of major privacy advocacy organizations as well, including the American Civil Liberties Union (ACLU), Center for Democracy and Technology (CDT), and the Electronic Frontier Foundation (EFF). The ECPA is among the primary federal wiretapping statutes, as it prohibits interception and disclosure of “wire, or or electronic communications” both during communication activities and in storage. Despite the use of the phrase “electronic communications” it has primarily been used in the context of privacy protections for telephone and email, and one of the goals of the coalition is to extend the sort of protections in ECPA to a wider range of modern technologies, including mobile phones and the Internet. The technology vendors seem primarily interested in both simplifying the language in the law and extending its privacy protections to emerging information access and computing models like cloud computing and mobile devices. Among the primary objectives for the privacy advocates in the group are:

• Privacy of communications and documents you store in the cloud
• Protection against secret tracking of your location through mobile devices
• Strengthen protections against secret monitoring of communications over the telephone or the Internet
• Limit the amount of data the government can access for investigative purposes unless it is related to a specific criminal suspect

While no government endorsement of the coalition’s aims has been made, Sen. Arlen Specter of Pennsylvania called publicly this week for an extension of federal wiretapping laws like ECPA to cover the online photographic and video surveillance, such as the use of webcams. The primary driver behind Specter’s statements is the ongoing investigation of the alleged incidents in the Lower Merion (PA) school district where school network administrators remotely activated webcams in laptop computers issued to students and used the cameras to record students without their knowledge or consent (and without probable cause). The motivations are quite different but the message is the same:  a law written nearly 25 years ago before the advent of the Internet cannot effectively be used to regulate communication using current technology unless the law is changed to keep pace with the technology.

Update 1:
It seems that when you get a coalition like this together, people in Washington take notice quickly. In a press release dated March 30, House Representatives John Conyers, Jerrold Nadler, and Robert Scott announced their intention to lead House consideration of reforms to ECPA, working through the Judiciary Committee, which Conyers chairs.

Update 2:
On Friday, April 2, Senate Judiciary Committee Chair Patrick Leahy announced that he will also take up consideration of ECPA in the Senate.